Mandatory Legal Representation and the Right of Access to the Case-files of the Accused in Pretrial Detention
Date Issued
2012
Date
2012
Author(s)
Hsieh, Hui-Chung
Abstract
Detention is important for the purpose of prosecution, especially in the pretrial proceedings. On the other hand, it is the most serious infringement on the right if liberty. Therefore, habeas corpus proceedings must provide sufficient guarantees of the judicial procedure, including varied procedural rights.
The case-law of the European Court of Human Rights says, “In the view of the dramatic impact of the deprivation of liberty on the fundamental rights of the person concerned, proceedings conducted under Article 5 § 4 of the Convention should in principle also meet, to the largest extent possible under the circumstances of an on-going investigation, the basic requirements of a fair trial, such as the right to an adversarial procedure.” In order to ensure the principle of equality of arms and the requirement for an adversarial procedure, the accused in a pretrial detention must have opportunities to access the file and be assisted by a legal representation. In 2009, the German Code of Criminal Procedure was amended to provide mandatory defence for the accused, if remand detention is executed against him. Furthermore, it also regulates, if the accused is in remand detention or in the case of provisional arrest, information of relevance for the assessment of the lawfulness of such deprivation of liberty shall be made available to the defence counsel.
In Taiwan, since the regulations of the Code of Criminal Procedure, the accused in pretrial detention does not have the right to having a defence counsel appointed by a judge or prosecutor. Moreover, a defence counsel does not have the right to access the case-files in pretrial proceedings, even if the accused is in remand detention. In conclusion of the thesis, to ensure the personal right of liberty, the mandatory defence shall be provided for the accused in the pretrial detention, and the defence counsel of the accused in pretrial detention shall have the right to access the case-files, which are relevant to the assessment of the lawfulness of deprivation of liberty.
Subjects
deprivation of liberty
Habeas Corpus
mandatory defence
the right to access the file
SDGs
Type
thesis
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